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January 6, 2000

FOIL-AO-11900

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear

I have received your letter of November 28, as well as the materials relating to it.
You have sought assistance in obtaining an evaluation pertaining to yourself prepared by the
Ulster County Mental Health Department, apparently at the direction of the Family Court.
You were informed by the Department that its "historical understanding" has been that the
kind of record at issue is the property of the Court, and that a request should be directed to
the Court.

Based on a recent decision rendered by the Court of Appeals, the state's highest court,
it appears that, with possible exceptions, the contents of the evaluation should be disclosed to
you.

By way of background, the Freedom of Information Law pertains to agency records,
and §86(3) of that statute defines the term "agency" to include:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state
legislature."

In turn, §86(1) defines "judiciary" to mean:

"the courts of the state, including any municipal or district
court, whether or not of record."

As such, the Freedom of Information Law clearly applies to a county mental health
department, but it excludes the courts and court records from its coverage. This is not to
suggest that court records may not be accessible, for other provisions of law frequently
require or authorize disclosure of those records. Of possible significance, for example is
§166 of the Family Court Act. That statute states that:

"The records of any proceeding in the family court shall not be
open to indiscriminate public inspection. However, the court in
its discretion in any case may permit the inspection of any
papers or records. Any duly authorized agency, association,
society or institution to which a child is committed may cause
an inspection of the record of investigation to be had and may
in the discretion of the court obtain a copy of the whole or part
of such record."

In my view, a request for a record pertaining to yourself would not constitute "indiscriminate
public inspection", and therefore, if the Family Court maintains the record in question, I
believe that it would be authorized to disclose its contents to you.

I point out that the coverage of the Freedom of Information Law is broad, for §86(4)
defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Based on the foregoing, the report at issue would appear to constitute an agency record. As
the matter relates to the County Mental Health Department, as a general matter, the Freedom
of Information Law is based upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or portions thereof fall within one or
more grounds for denial appearing in §87(2)(a) through (i) of the Law. The first ground for
denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state
or federal statute." One such statute is §33.13 of the Mental Hygiene Law, which prohibits
mental health facilities from disclosing clinical records pertaining to a patient or client.

Consequently, a different statute, however, deals directly with rights of access to
mental health records by the subject of those records. Specifically, §33.16 of the Mental
Hygiene Law provides rights of access to clinical mental health records, with certain
exceptions, to "qualified persons," and paragraph 7 of subdivision (a) of that section defines
that phrase to include "any properly identified patient or client." It appears that you are a
"qualified person" and that you may assert rights of access under that statute.

I note that the right of a qualified person to obtain records pertaining to himself or
herself is not absolute, for subdivision (c)(1) of §33.16 provides that such records may be
withheld insofar disclosure "can reasonably be expected to cause substantial and identifiable
harm to the patient or client or others which would outweigh the qualified person's right of
access to the record..."

As suggested earlier, the Court of Appeals dealt recently with a similar matter
involving access by a patient to medical records maintained by the State Department of
Health that were prepared by a hospital. In Mantica v. New York State Department of Health
(___ NY 2d___, October 26, 1999), the Court wrote that "[t]he issue here is whether patients
may obtain their own medical records from a state agency pursuant to New York State's
Freedom of Information Law...despite the prohibition of Public Health Law § 18(6) against
redisclosure of patient information by third parties." The Court unanimously held that the
records should be made available to patients, but "that right is not absolute." In a manner
analogous to the provisions of the Mental Hygiene Law quoted above, the Public Health Law
provision generally granting patients access to records pertaining to themselves enables a
provider to deny access when disclosure could cause "substantial and identifiable harm" to
the patient or others, or when the records contain "privileged doctors' notes". Due to the
similarity between the situation that you described and that presented in Mantica, I believe
that the principles and the outcome should be the same, i.e., that you have a right to the
evaluation, except to the extent that the Department may deny access pursuant to
§33.16(c)(1) of the Mental Hygiene Law.

Lastly, subdivision (d) of §33.16 pertains to the right to appeal a denial of access and
states that:

"(d) Clinical records access review committees. The
commissioner of mental health the commissioner of mental
retardation and developmental disabilities and the
commissioner of alcoholism and substance abuse services shall
appoint clinical record access review committees to hear
appeals of the denial of access to patient or client records as
provided in paragraph four of subdivision (c) of this section.
Members of such committee shall be appointed by the
respective commissioners. Such clinical record access review
committees shall consist of no less than three nor more than
five persons. The commissioners shall promulgate rules and
regulations necessary to effectuate the provisions of this
subdivision."

If you do not receive a satisfactory response to your request, it is suggested you
request the rules and regulations from the appropriate commissioner in order to ensure that
you are following the correct procedure and that you can properly attempt to assert your
rights.

 

 

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Marshall Beckman